International Tel. & Tel. Corp. v. Hartford Acc. & Indem. Co.

• Decision Date: 14 April 1970
• Citation: 357 Mass. 282,257 N.E.2d 787
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: INTERNATIONAL TELEPHONE & TELEGRAPH CORPORATION v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al.

Page 787

257 N.E.2d 787

357 Mass. 282

INTERNATIONAL TELEPHONE & TELEGRAPH CORPORATION v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 3, 1970.

Decided April 14, 1970.

Francis H. Fox, Boston, for plaintiff.

Herman Snyder, Boston (David F. Parish, Boston, with him), for defendant.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL and REARDON, JJ.

KIRK, Justice.

The plaintiff (I T & T), a Maryland corporation, by corporate merger succeeded to the assets, claims and choses in action of Nesbitt, Inc. (Nesbitt), a Delaware corporation, engaged in the business of supplying ventilating, heating and plumbing materials. Under G.L. c. 149, § 29, I T & T seeks to enforce Nesbitt's right to payment for materials furnished by Nesbitt for use in the construction of an addition to a public school in the town of Holliston (the town).

The general contractor for the construction of the school addition was Donatelli Building Company, Inc. (Donatelli), a Rhode Island corporation. The surety on Donatelli's bond to the town was the defendant Hartford Accident and Indemnity Company (Indemnity). Kahn Heating Corporation 'Kahn), a Massachusetts corporation, subcontracted with Donatelli to do the heating and ventilating work at the school. Nesbitt supplied certain materials required by Kahn in the performance of its subcontract with Donatelli,

Kahn is not a party to the suit. No relief is sought against the town.

We state certain undisputed facts. Kahn's first purchase order to Nesbitt was made in July, 1963. It called for materials at a purchase price of $8,280. Nesbitt accepted the order. Shipments were made on October 7, 14 and 24, 1963. The October shipments embraced more than 650 items. On March 13, 1964, additional materials which included one component invoiced for $23.60 were shipped to Kahn at the site by Nesbitt. The March 13, 1964, shipment consisted of a total of thirteen items. This shipment will be discussed in detail later in the opinion.

On April 9, 1964, Kahn was adjudicated bankrupt. On May 18, 1964, Nesbitt filed with the town clerk a sworn statement of its claim for $8,353.10 for heating and ventilating equipment supplied to Kahn for the school from October 7, 1963, to May 7, 1964. ¹

No payment whatever has been made to Nesbitt for the materials furnished at the school job.

The case was referred to a master, who, subject to some vague reservations of law, found for Indemnity and Donatelli. By interlocutory decrees the plaintiff's motion to recommit was denied, its exceptions to the report were overruled, and the report was confirmed. A final decree was entered dismissing the plaintiff's bill. From all of the decrees the plaintiff has appealed.

The master correctly stated 'To obtain the benefit of a sworn statement filed within 'ninety days after the claimant ceases to * * * furnish * * * materials, appliances * * * as aforesaid's the plaintiff must rely upon the March 13, 1964 shipment,' since the last previous shipment was clearly more than ninety days before the filing of the sworn statement.

The master found 'Nesbitt made all shipments in good faith and with no express intention to extend the time prescribed by G.L. c. 149, § 29, for filing its lien.'

He made an alternate finding, based in part on a stipulation of the parties. 'If, as a matter of law, the petitioner can recover, the amount of its finding is $8,280.00 plus allowable interest from May 18, 1964 when it filed the sworn statement of claim * * *' (emphasis supplied.)

We feel obliged to comment on the master's report. Notwithstanding the fact that on its face the report conforms to Rule 86, subd. B of the Superior Court (1954) in that it has captions reading 'Subsidiary Findings of Fact' and 'General Findings of Fact' it lacks the coherence and unity which are essential to a statement of facts upon which a judgment is to be made. It has been necessary for us to cull, draw together and correlate facts scattered among eighty five numbered paragraphs. This kind of burden should not fall upon a reviewing court, whether it be the Superior Court or this court. We have criticized this kind of report before. State Line Contractors, Inc. v. Commonwealth, Mass., 249 N.E.2d 619. ^a The present effort represents a new high in the flourishing art of expository confusion.

The master's finding in favor of Indemnity was based on his conclusion that the claim filed by Nesbitt on May 18, 1964, under G.L. c. 149, § 29, was ineffective. It was ineffective, says the master, because it was late; and it was late because the shipment by Nesbitt to Kahn on March 13, 1964, was a nullity under G.L. c. 149, § 29.

We have studied the report and shall state the result as to facts found, issues presented and the rationale apparently controlling the conclusions of the master.

The master's report shows that the shipment of March 13, 1964, was a single shipment. Although the report does not expressly so state, we think it is desirable for purposes of presentation and discussion to divide the shipment into three components. We must treat each of the three components separately.

1. The first component consisted of items shipped to Kahn as the result of a change order in Donatelli's original contract with the town. There is no question about the authenticity of the change order. The town's architect directed Donatelli to furnish and install a two foot section of fin radiation in the men's lounge of the new building. At Kahn's order Nesbitt shipped these items, with necessary accessories for installation, to the site as part of the March 13, 1964, shipment. The invoice showed that the charge for this change order material was $23.60. The master stated that 'he heard no direct evidence to permit (him) to find that Kahn did any work on the contract after March 13, 1964.' He found that 'Donatelli made its own arrangements with a Mr. Toohey to do the work covered by * * * (the change order)' and that Toohey did the work covered by the change order by using Nesbitt material reclaimed from the older building. The master concluded that because the change order materials in the March 13, 1964, shipment were not used in the school addition they did not serve to make that date effective for the commencement of the ninety day period under G.L. c. 149, § 29.

2. The second component of the March 13, 1964, shipment consisted of two so called W.O.L. wall sleeves. These items the master found had been called for by the original purchase order of July, 1963, and should have been included by Nesbitt in the October shipments of that year. By inadvertence, however, these items were not included among the more than 650 items in the October, 1963, shipments, although the charge for them was included in the October invoices. The value of the two W.O.L. wall sleeves was $6. To make up for the inadvertent omission in October 1963, Nesbitt included them at Kahn's request in the March 13, 1964, shipment. No charge was made by Nesbitt for these two W.O.L. wall sleeves. The master found that the original Kahn-Donatelli agreement called for only two Nesbitt W.O.L. sleeves in the new building. He found that the job, as completed on May 22, 1964, had two Nesbitt W.O.L. sleeves incorporated in it. He declined to find, however, that the two Nesbitt W.O.L. sleeves actually used were those shipped on March 13, 1964, '(s)ince there is a possibility that the sleeves, so seen on the job were sleeves which had been in the old school area.'

3. The third component of the March 13, 1964, shipment consisted of three seven and one half inch Type A wall sleeves and three four inch wall sleeves. These items were shipped to Kahn without charge after Kahn had reported to Nesbitt that they were not on the job site when he required their use and had not been included in the ...